Jones Bey v. Bank of America

Filing 26

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendant's Motion to Dismiss 21 is GRANTED for lack of subject matter jurisdiction. An appropriate Order of Dismissal will accompany this Memorandum and Order. Signed by District Judge John A. Ross on 7/3/13. (ARL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

RONALD JONES BEY,
Plaintiff,
v.
BANK OF AMERICA, N.A. ,
Defendant.

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No. 4:12-CV-1130-JAR

MEMORANDUM AND ORDER
This matter is before the Court on Defendant’s Motion to Dismiss Complaint. [ECF No.
21] On May 17, 2013, Plaintiff filed a Supplemental Pleading in Support of Plaintiff’s Motion to
Deny Defendant’s Motion to Dismiss Amended Complaint. (Doc. No. 25) Defendant has not
replied. The motion is, therefore, fully briefed and ready for disposition. For the following
reasons, Defendant’s motion to dismiss will be granted in part.
Background
On June 22, 2012, Plaintiff filed his pro se Complaint against Defendant Bank of America
arising from the Bank’s foreclosure on certain property he owns in St. Louis City. (Doc. No. 1)
On July 27, 2012, he filed an “Amendment to Original Complaint.” (Doc. No. 4) On October 12,
2012, Bank of America moved to dismiss Plaintiff’s Complaint pursuant to Rules 12(b)(4),
12(b)(5), and 12(b)(6) of the Federal Rules of Civil Procedure. (Doc. No. 11) On February 20,
2013, this Court granted Plaintiff’s Motion to Amend his Complaint and denied Bank of
America’s Motion to Dismiss as moot. (Doc. No. 17) Bank of America now moves to dismiss
Plaintiff’s Amended Complaint for lack of subject matter jurisdiction, lack of personal jurisdiction,

insufficient process, insufficient service of process, and failure to state a claim pursuant to Rules
12(b)(1), 12(b)(2), 12(b)(4), 12(b)(5) and 12(b)(6).
Discussion
Subject matter jurisdiction
“In every federal case the court must be satisfied that it has jurisdiction before it turns to
the merits of other legal arguments.” Snelling v. Evans, 2011 WL 1979598, at *2 (E.D.Mo. May
20, 2011) (quoting Carlson v. Arrowhead Concrete Works, Inc., 445 F.3d 1046, 1050 (8th
Cir.2006)). See also Continental Cablevision of St. Paul, Inc. v. U.S. Postal Service, 945 F.2d
1434, 1438 (8th Cir. 1991) (“A district court must determine questions of subject matter
jurisdiction before determining the merits of the case.”). The Court has the duty to determine its
jurisdiction, and to raise the issue of subject matter jurisdiction sua sponte, if necessary. Id. (citing
Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982); City
of Kansas City, Mo. v. Yarco Co., Inc., 625 F.3d 1038, 1040 (8th Cir.2010). The Court must
dismiss any action over which it determines that it lacks subject-matter jurisdiction. Rule 12(h)(3),
Fed.R.Civ.P.
In support of its motion to dismiss, Bank of America states that while Plaintiff indicated
on his civil cover sheet that the basis for this Court’s jurisdiction over his action is federal
question jurisdiction, he has not set forth any facts establishing the Court’s jurisdiction pursuant
to 28 U.S.C. § 1331. (Doc. No. 22, p. 3) In response, Plaintiff contends that the basis for this
Court’s jurisdiction is set out in the opening paragraph of his amended complaint asserting
“fraud” and “misrepresentation” as well as an asserted lack of standing on the part of the Bank.
(Doc. No. 25, p. 2)
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Rule 12(b)(1) challenges to subject matter jurisdiction may be facial challenges, factual
challenges, or both. Foster v. Deutsche Bank Nat. Trust Co., 2012 WL 5285887, at *2 (E.D.Mo.
Oct. 25, 2012). The Court construes Bank’s motion as a facial challenge, since it has not attached
jurisdiction-related evidence such as affidavits and deposition testimony to its motion. See Adkins
v. Option One Mortgage Corporation, 2009 WL 35181, at *3 n.4 (W.D. Mo. Jan. 5, 2009). In a
facial challenge, the Court restricts itself to the face of the pleadings, and all of the factual
allegations concerning jurisdiction are presumed to be true. Titus v. Sullivan, 4 F.3d 590, 593 (8th
Cir.1993). A motion to dismiss presenting a facial challenge to the Court's subject matter
jurisdiction should be granted where the plaintiff fails to allege an element necessary for subject
matter jurisdiction. Id. Here, Plaintiff does not allege a specific basis for the jurisdiction of this
Court in his amended complaint. Accordingly, in light of Plaintiff’s pro se status, and construing
the complaint liberally, the Court considers whether Plaintiff asserts a valid basis for the Court’s
jurisdiction pursuant to either 28 U.S.C. § 1331, federal question jurisdiction, or 28 U.S.C. §
1332, diversity of citizenship jurisdiction. Even though the Court holds Plaintiff’s complaint to a
less stringent standard than formal pleadings drafted by an attorney, see Nickless v. Saint Gobain
Containers, 2012 WL 1414849, at *4 (E.D.Mo. April 24, 2012), Plaintiff, as the party asserting
federal jurisdiction, bears the burden of establishing that federal jurisdiction exists. City of
University City, Missouri v. AT & T Wireless Services, Inc., 229 F.Supp.2d 927, 929 (E.D. Mo.
2002) (citing In re Business Men’s Assurance Co. of America, 992 F.2d 181, 183 (8th Cir.
1993)).
Federal question jurisdiction
Under 28 U.S.C. § 1331, federal question jurisdiction arises where federal law creates the
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cause of action, or where the complaint, on its face, poses a federal question. I.S. v. Washington
University, 2011 WL 2433585, at *2 (E.D. Mo. 2011). The Court cannot discern any claims in
the amended complaint which arise under the Constitution, laws, or treaties of the United States.
On its face, the complaint is titled “Amended Complaint in Support of MERS Lack of Interest to
Assign Note and Deed of Trust to Bank of America N.A. Without Standing and Verification of
Assignment and Allonge to Note.” (Doc. No. 18) The relief Plaintiff seeks is not expressly
granted by a federal law, and his claims do not implicate the construction of a federal statute, or
require the application of federal legal principles for their disposition. As such, these claims do not
provide an independent basis for federal question jurisdiction. Accordingly, the Court finds that
Plaintiff's amended complaint fails to set forth a sufficient basis for the exercise of federal question
jurisdiction pursuant to 28 U.S.C. § 1331.
Having determined that the allegations of Plaintiff's amended complaint do not support
federal question jurisdiction in this case, the Court now considers whether Plaintiff adequately
asserts a basis for the Court to exercise diversity of citizenship jurisdiction over his claims.
Diversity jurisdiction
To establish diversity jurisdiction under 28 U.S.C. § 1332(a), the party asserting
jurisdiction must show complete diversity of citizenship among the parties and an amount in
controversy exceeding $75,000. In this regard, Plaintiff must specifically allege each party’s
citizenship to show that Plaintiff and Defendant are citizens of different states. Sanders v. Clemco
Industries, 823 F.2d 214, 216 (8th Cir. 1987). Moreover, it is well established that when
jurisdiction depends upon diversity, the absence of sufficient averments or facts in the record
showing such required diversity of citizenship is fatal and cannot be overlooked by the Court. Id.
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(“In order to adequately establish diversity jurisdiction, a complaint must set forth with specificity
a corporate party’s state of incorporation and it principal place of business. Where the plaintiff
fails to state the place of incorporation or the principal place of business of a corporate party, the
pleadings are inadequate to establish diversity.”) (internal quotation omitted). See also Poling v.
K. Hovnanian Enters., 99 F.Supp.2d 502, 515 (D.N.J. 2000) (“The court can only ‘properly
determine whether complete diversity of the parties in fact exists and thus whether the court has
jurisdiction to adjudicate the matter[,]’ when the plaintiff, even if proceeding pro se, affirmatively
pleads facts regarding the citizenship of individual defendants and the dual citizenship of
corporate defendants.”) Because Plaintiff's complaint is silent as to the citizenship of the parties,
and complete diversity of citizenship is not apparent from the pleadings, the Court cannot exercise
jurisdiction over this case under 28 U.S.C. § 1332. See Sanders, 823 F.2d at 216 (citing Joiner v.
Diamond M Drilling Co., 677 F.2d 1035, 1039 (5th Cir. 1982)).
Conclusion
For the foregoing reasons, the Court will grant Bank of America’s motion to dismiss for
lack of subject matter jurisdiction. Plaintiff may have claims to assert in state court; however,
these claims cannot serve as a sufficient basis for subject matter jurisdiction in this case. Having
found that it lacks jurisdiction in this case, the Court will not address the merits of the other
arguments contained in Bank of America’s motion.
Accordingly,
IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss [21] is GRANTED for
lack of subject matter jurisdiction.
An appropriate Order of Dismissal will accompany this Memorandum and Order.
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Dated the

3rd

day of July, 2013.

_______________________________
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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